SUPREME COURT OF QUEENSLAND
CITATION: R v Ferguson; ex parte A-G (Qld) [2008] QCA 227 PARTIES: R
v
FERGUSON, Dennis Raymond
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)FILE NO/S: CA No 181 of 2008
DC No 1227 of 2007DIVISION: Court of Appeal PROCEEDING: Miscellaneous Application - Criminal ORIGINATING
COURT:District Court at Brisbane DELIVERED ON: 8 August 2008 DELIVERED AT: Brisbane HEARING DATE: 22 July 2008 JUDGES: McMurdo P, Keane and Muir JJA
Judgment of the CourtORDER: 1. Appeal allowed
2. Set aside the decision below 3. Issue a warrant for the apprehension of the respondent, to lie in the registry for four days CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – where the Attorney-General appeals against the decision of the learned primary judge to stay permanently the proceedings – where the appeal is brought under s 669A(1A) of the Criminal Code – whether the Court has the power to dispose of the appeal – whether the appeal is to proceed as one in the strict sense or by way of re-hearing CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS – STAY OF PROCEEDINGS – PRE-TRIAL PUBLICITY – where the criminal history of the respondent and conjecture as to his propensity to re-offend has been the subject of widespread pre-trial publicity – where the learned primary judge ordered that the proceedings be stayed permanently on the grounds that the level of prejudicial pre-trial publicity would render it impossible to empanel a jury who are capable of bringing an impartial mind to bear in assessing the evidence and rendering their verdict – whether the learned primary judge erred in the exercise of the discretion to permanently stay criminal proceedings CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – ADJOURNMENT, STAY OF
PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS – STAY OF PROCEEDINGS – GENERALLY – where the learned primary judge found there to be some evidence which may support a conviction – where the learned primary judge nonetheless found the Crown case to be "weak" – whether the weakness of the Crown's case is a matter to which a primary judge ought properly have regard when determining the question of whether or not to stay permanently the proceedings Acts Interpretation Act 1954 (Qld), s 49A
Criminal Code Act 1899 (Qld), s 668E, s 669A(1A), s 669A(4)
Jury Act 1995 (Qld), s 43, s 47, s 53(2A)(b), s 69ABarton v The Queen (1980) 147 CLR 75; [1980] HCA 48, cited Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67, cited David Syme & Co v Canavan (1918) 25 CLR 234; [1918] HCA 50, cited De Jesus v The Queen (1986) 61 ALJR 1; [1986] HCA 65,
considered
Director of Public Prosecutions v Humphrys [1977] AC 1, cited
DJL v The Central Authority (2000)…
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Details
- AGLC
- R v Ferguson; ex parte A-G (Qld) [2008] QCA 227
- Case
- [2008] QCA 227
- Decision Date
CaseChat Overview and Summary
The case before the court involved an appeal by the Attorney-General against a decision of the primary judge to permanently stay proceedings against the accused, Dennis Ferguson. The primary judge had found the Crown case against Ferguson to be tenuous and unreliable, particularly due to the questionable credibility of the key witness, a five-year-old child named K. The appeal was brought under section 669A(1A) of the Criminal Code, raising questions about the court's power to dispose of the appeal and whether it should proceed as a strict appeal or by way of a re-hearing. The primary judge had expressed concerns about the child's testimony, noting inconsistencies and the improbability of her account given her young age.
The court was tasked with determining whether it had the authority to handle the appeal and, if so, how it should proceed. The central legal issue revolved around the interpretation of section 669A(1A) of the Criminal Code and the appropriate procedure for dealing with an appeal where the primary judge had found the Crown's case to be fundamentally flawed. The court also had to consider the implications of the primary judge's detailed findings on the reliability of the evidence against the accused.
In its reasoning, the court concluded that it did indeed have the power to decide the appeal under section 669A(1A). The court found that the primary judge's decision to stay the proceedings was not beyond its jurisdiction and that the appeal should proceed as a strict appeal, focusing on the legal errors made by the primary judge rather than conducting a re-hearing. The court emphasised that the primary judge's findings on the reliability of the evidence were significant and warranted review. Ultimately, the court allowed the appeal, finding that the primary judge had erred in law by permanently staying the proceedings without sufficient justification. The court's decision reinstated the original proceedings against Ferguson, providing him the opportunity to have his case fully adjudicated on the merits.
The final orders of the court were that the appeal was allowed, and the proceedings against Dennis Ferguson were reinstated, allowing for a full trial to occur.
The court was tasked with determining whether it had the authority to handle the appeal and, if so, how it should proceed. The central legal issue revolved around the interpretation of section 669A(1A) of the Criminal Code and the appropriate procedure for dealing with an appeal where the primary judge had found the Crown's case to be fundamentally flawed. The court also had to consider the implications of the primary judge's detailed findings on the reliability of the evidence against the accused.
In its reasoning, the court concluded that it did indeed have the power to decide the appeal under section 669A(1A). The court found that the primary judge's decision to stay the proceedings was not beyond its jurisdiction and that the appeal should proceed as a strict appeal, focusing on the legal errors made by the primary judge rather than conducting a re-hearing. The court emphasised that the primary judge's findings on the reliability of the evidence were significant and warranted review. Ultimately, the court allowed the appeal, finding that the primary judge had erred in law by permanently staying the proceedings without sufficient justification. The court's decision reinstated the original proceedings against Ferguson, providing him the opportunity to have his case fully adjudicated on the merits.
The final orders of the court were that the appeal was allowed, and the proceedings against Dennis Ferguson were reinstated, allowing for a full trial to occur.
Orders
Orders of the court
1. Appeal allowed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
His Honour's summary of the weakness of the Crown case was as follows: "The only evidence which directly implicates the accused in the commission of an offence against K on the 9th of November, 2005 is the evidence of K. This is comprised of what she said in an interview with a Police Officer, Hayes, that interview having been recorded and tendered in the now familiar way, and her prerecorded evidence given before this court on the 1st of November, 2007. I was told that K was born on the 2nd of May 2000. She was thus about five and a half years old when the offence is alleged to have been committed. There must be serious concern about the reliability of K's evidence. Counsel for the applicant has set out in detail in his written submissions a number of the matters which give rise to concern. I have had regard to them all, but will only refer to some here. During the interview the child alleges that the accused did 'something to me right here in my little bum' and points to her waist. She alleges (contrary to the Crown case) that she was in a room with a bed and a cot when she was dealt with. She says it was the accused's friend who read to her, and later says that she was touched whilst being read to. She does not clarify, as it seems to me, how she was touched. K was not able in any satisfactory way to identify the accused when shown a photoboard containing his photograph along with others. Another Crown witness was present at the time. His name is Allen Guy. He has been convicted a number of times of sexual offences involving children. K's evidence in this court is concerning. Whilst she clearly alleges that the accused touched her, she equally clearly identifies the person who touched her as the other man that was present. This is the relevant part of her evidence: "BY COUNSEL: See, K, I've spoken to Dennis and he tells me he didn't touch you as you've told us; what do you say about that?-- Umm, well - well, B was with Dennis and I was with Dennis' friend. HER HONOUR: Now, just----- MR SMITH: So----- WITNESS: And I was with his friend. HER HONOUR: The question that was put to you, K, is this: Mr - Mr Smith said to you that Dennis told him that he didn't touch you?-- Well, B was----- Did - did he touch you-----?-- -----B was----- Sorry. Did he touch you-----?-- Well, B - well, B was with Dennis and I was - and I was with his friend. Did Dennis touch you?-- No, his friend did.' Counsel for the Crown then re-examined K. In what appears to be arguably cross-examination he secures from K an affirmative answer to the question, 'Did Dennis touch you?' I have watched the recording of the child's evidence. In my view it cannot be said that the child was in any way overborne when she gave the evidence that I have just referred to. As will be observed, the trial judge intervened not, as I perceive it, because of any concern that the child was overborne, but rather to be confident that the child was understanding what was being asked of her. I do not think it necessary to discuss the other submissions made to me in respect to the tenuous nature of the Crown case. Clearly there is some evidence which might support a conviction. In my view the Crown case is tenuous."[2] [2] [2008] QDC 136 at 23 – 25. The learned primary judge's conclusions
Ratio Decidendi
Legal Principle Established
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